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Morphet v. Morphet

October 27, 1972

MORPHET, APPELLANT,
v.
MORPHET, RESPONDENT



Appeal from Circuit Court, Clackamas County. Winston L. Bradshaw, Judge.

John C. Caldwell, Oregon City, argued the cause for appellant. With him on the briefs were Hibbard, Caldwell, Canning & Schultz, Oregon City.

Patric J. Doherty, Portland, argued the cause for respondent. With him on the brief were McMurry, Sherry & Nichols, Portland.

In Banc. Tongue, J.

Tongue

This is an action to enforce a judgment entered by a Pennsylvania court in 1967 for $14,500 as the accrued amount due and unpaid under a 1950 judgment of another court of that state for support payments of $20 per week to plaintiff as the wife of defendant. Defendant filed a general denial and also pleaded as an affirmative defense the entry of a 1953 Nevada divorce decree as terminating the obligation to pay support money at that time. Plaintiff's reply alleged that at the time of the Nevada divorce decree defendant (the plaintiff in the Nevada case) was not a resident of that state and that the Nevada court had no jurisdiction.

At the trial of the case neither party appeared personally, but counsel for both parties nevertheless proceeded with the trial. The evidence in plaintiff's opening case was limited to the offer of exemplified copies of the 1950 and 1967 Pennsylvania judgments together with the praecipe for entry of the later judgment, which plaintiff contended to be sufficient to sustain his burden of proof.

Defendant's evidence was similarly limited to the offer of an exemplified copy of the Nevada divorce proceedings, including proof of personal service upon plaintiff (the defendant in that case) in Pennsylvania and findings of fact which included a finding that "for a period of more than six (6) weeks immediately preceding the commencement of this action, plaintiff [the defendant in this case] has been an actual bona fide resident of the County of Elko, State of Nevada, and has been for said period of time, actually, physically and corporeally present in said County and State and domiciled therein." Plaintiff made no objection to such evidence.

Plaintiff's rebuttal evidence was limited to the offer of unexemplified copies of 1955-1956 proceedings by plaintiff against defendant in Illinois to collect support payments, including the appearances filed in the court on behalf of defendant and a judgment for $1,860. This evidence was offered to show that the Illinois court disregarded the Nevada divorce decree. Defendant's objections to these documents on the ground that they were not exemplified copies were sustained. No other evidence was offered to support plaintiff's contention that defendant was not a resident of Nevada and that the Nevada court had no jurisdiction. Plaintiff also contended, however, that even "if the divorce decree is to be honored" there would still be support payments due for a period of "about three years," which would be "a substantial sum."

Both parties then submitted this case to the trial court for decision on April 1, 1969. After first taking the case under advisement, the court, on April 10, 1969, issued a letter opinion to the parties in which it was held that the 1953 Nevada divorce decree terminated defendant's obligation to pay support under the 1950 Pennsylvania judgment; that as of the date of the Nevada decree the unpaid and accrued support payments totaled $70, and that plaintiff was "entitled to a judgment" against defendant in that amount.

However, neither party prepared or tendered a form of judgment based upon that decision. Nearly two years later, on January 18, 1971, an order was entered dismissing this and over 150 other cases for want of prosecution.

On December 16, 1971, eleven months after the case had been dismissed and more than two and one-half

years after the case had been tried, a motion was filed by the personal representative of defendant's estate for an order reinstating the case and for entry of a judgment in favor of plaintiff and against defendant for $70, based upon the previous letter opinion. The motion also alleged that defendant had died on April 19, 1971; that plaintiff had filed a new and separate action against defendant's estate, again seeking to recover $14,500 in accrued support payments; that "this same cause of action has previously been litigated" in this case, and that the case should be reinstated and a judgment entered in accordance with the previous decision of the court.

After a hearing on that motion, the court entered an order that the case be reinstated. On the same date the court entered a judgment in favor of plaintiff for $70, based upon findings and conclusions that the 1953 Nevada divorce terminated the support payments due under the original 1950 Pennsylvania support judgment as of the date of their decree and that $70 was the amount then due and payable.

Plaintiff appeals from that judgment and contends: (1) that the trial court erred in reinstating the case without first requiring defendant to comply with ORS 18.160, and (2) that the trial court erred in failing to enter ...


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